Recyclability claims face increased examination

Companies need to be careful when marketing recyclability claims for plastics as they now are coming under increased scrutiny, according to one legal expert in the field.

Environmental claims surrounding plastic recycling are gaining more and more attention from regulators, the legal community and even competitors and consumers, said Sheila Millar, a partner with the law firm Keller and Heckman LLP.

Just like the claims of degradability have been challenged in recent years, claims of recyclability also are increasingly experiencing similar questioning.

"Recyclability claims are increasingly under attack," Millar explained during a presentation during the recent plastics sustainability workshop organized by the Plastics Industry Association trade group.

Of particular interest is recently passed and well-publicized legislation in California that will limit the use of the chasing arrows symbol on packaging. The arrows, over time, have come to be widely accepted as a sign for recycling and are commonly used in conjunction with resin identification codes on plastic packaging.

But liberal use of the arrows on plastic packaging has led to confusion about what is recyclable vs. what is actually recycled and has invited plenty of questions from outside the industry.

The new state law, Senate Bill 343, aims to limit the use of the chasing arrows on packaging and gives CalRecycle, a state agency, the authority to make determinations on its use.

The law was broadly opposed by the plastics industry with opponents claiming the new approach will actually limit recycling. But the bill received widespread support in both chambers of the California Legislature, and Gov. Gavin Newsom signed the measure into law in early October.

"That law could have a very significant effect in that it has specific restrictions on the use of the chasing arrows symbols or recyclability claims unless the product on which that claim attaches meets standards for recyclability under the FTC guides," she said.

"Which means that the product has to be recyclable to at least 60 percent of consumer or communities in the market, and of course we're talking about the California market. That also means that technical recyclability does not qualify. Pickup alone does not qualify. So there's much more attention to making sure an actual product is made out of the recycled material at the end of the pipeline," the lawyer explained.

In advertising, companies can be challenged to their claims of recyclability by competitors and consumers through the National Advertising Division, a part of the Better Business Bureau, Millar said.

"The general view of advertising claims is that advertising claims have to be substantiated by a reasonable basis. And in the United States, that reasonable basis is in the form of what we call competent and reliable scientific evidence," she said.

Millar said there is a growing number of state laws that are requiring recycled-content minimum standards.

"I think one of the realities for the recycling landscape is that for the plastics sector, in general, it is going to be, at a minimum, extraordinarily challenging and perhaps impossible to meet those recycled-content mandates relying solely on mechanical recycling, which is why molecular recycling is being much more talked about and a lot more research is going into it," she said.

Molecular recycling, also called chemical recycling and advanced recycling by some, presents its own challenges regarding traceability, however. That's because plastics  broken down to their elemental constituents make it more difficult to substantiate recycled content claims. "But there are organizations looking into that question even as I speak today," Millar said.

She added that some lawyers also see the issue of recyclability as an opportunity to potentially win court cases. "Bounty hunter" law firms specializing in bringing cases under California's Prop 65 law, which mandates the disclosure of cancer-causing chemicals in products, are now seeing opportunity to branch out into environmental claims, she said.

Millar leads her law firm's consumer protection regulatory practices. She counsels and represents businesses on compliance questions and processes and regulatory enforcement matters.